NHTSA Smart Key Compliance

Keyless ignitions, introduced in the late 1990’s, were intended to offer drivers convenience. Instead, they have disrupted a well-established set of driver behaviors and expectations, and introduced rollaway and carbon monoxide poisoning hazards that have resulted in injuries and death. Since 2010, there have been eight publically acknowledged deaths and two serious injuries from carbon monoxide poisonings linked to keyless ignition.

Due to this growing problem, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicle that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. Vehicle conditions that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present are all at issue and, incidentally, are all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to major car manufacturers including Toyota, Ford, General Motors, Nissan, Mazda, Hyundai, and Kia. The requests sought information on how 2012 and 2013 model-year vehicles’ keyless ignition systems operate under different scenarios to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

According to the National Highway Traffic Safety Administration (NHTSA), the investigation was started after a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. Ford also added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford’s consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a ‘key in ignition’ door chime to address the agency’s question with respect to requirements of FMVSS 114 Section 5.1.3 (Theft Protection).”

In this compliance probe, the agency asked for a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the systems, when the electronic code that makes up the NHTSA’s two-part system is purged from the system and the audio and visuals cues used to alert the driver that he or she has exited the vehicle. The NHTSA also asked for data from consumer complaints and the safety information manufacturers provide to their customers about keyless entry.

In December 2011 NPRM, the agency cited only a handful of complaints about the keyless entry feature on vehicles. However, a more recent search found more than 70 complaints in NHTSA’s VOQ database related to rollaway or carbon monoxide poisoning.

The most recently reported fatalities occurred in Greenville, South Carolina. Bill and Woo Thomaston died of carbon monoxide poisoning after apparently leaving their 2006 Toyota Avalon running in a basement garage. On June 9, police found the couple unconscious in the bedroom of their home. The battery and the fuel tank empty. The key fob was apparently still inside the vehicle.

In many vehicles, key slots and metal keys with indents have been replaced with plastic key fobs, containing an electronic code unique to a particular vehicle, and push-button ignitions. As these systems evolved, automakers in concert with NHTSA changed the definition of the key from a physical object to an invisible code. Consumers, meanwhile, continued to regard the plastic fob as the physical key to the car. One cannot start a vehicle without the key fob however it plays no role in turning the vehicle off, and shutting down the engine doesn’t automatically lock a vehicle’s transmission into “park” as required by FMVSS 114. Drivers must execute a certain sequence of events such as move the transmission into park, push the ignition button, open and shut the driver’s door. As simple as this might sound to drivers, there are those out there who have not completed the sequence correctly and suffered the sometimes fatal consequences.

Twenty consumers complained that they had actually left the car running-on multiple occasions; six mentioned carbon monoxide poisoning as a possible danger. In addition, two deaths and two injury accidents were reported to the agency. There are nine known fatalities and four serious injuries related to keyless ignition carbon monoxide poisonings. The chief complaint was rollaway: 43 drivers reported rollaway incidents, resulting in four injuries; five other owners mentioned that carbon monoxide poisoning was a danger.

More consumers complained about the possibility of rollaways. Consumers reported four injuries and 33 rollaway incidents. Another five consumers mentioned that it was possible to shut off the vehicle without the transmission automatically locking in park. These complaints covered a wide range of vehicle models including Toyota RAV4, Camry, Prius, and Lexus ES, Hyundai Sonata, Volkswagen Passat, Routan and Tiguan, Nissan Altima and Murano, Buick Verano, and Pontiac Sunfire. Of the 34 vehicles that were tested, 73 percent did not automatically lock the transmission in Park. Four GM models behaved as thought the key was still inside the vehicle even though the engine was no longer running and the transmission was in drive.

In December 2011, the agency opened a Notice of Proposed Rulemaking to again amend FMVSS 114. The agency’s proposal recognizes that the current keyless ignition systems have led to driver confusion, resulting in vehicles left running and/or out of the “park” position and the consequent rollaways and carbon monoxide poisonings. The NPRM pointed out, as did SRS more than a year prior, that the lack of standardization in combination with the lack of visual and tactile cues about the status of the vehicle engine has set the stage for the real world incidents in which drivers mistake the fob for the key, inadvertently leave the vehicle running and/or exit the vehicle without placing it into “park.”

The Final Rule is anticipated in 2015, the agency said.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.